Equality Act: AMEND AND PASS

The Honorable Richard Durbin
Chair, Senate Committee on the Judiciary

The Honorable Charles Grassley
Ranking Member, Senate Committee on the Judiciary

Dear Senators Durbin and Grassley,

Thank you for allowing me the opportunity to present this written testimony regarding the Equality Act.

LGB Alliance USA is part of an international group of lesbians, gay men, and bisexuals living in the United States. We define ourselves in terms of same-sex sexual orientation. Sex, not “gender.”

The Coalition for Feminist Amendments to the Equality Act (CoFA) is a national alliance of individuals and organizations representing feminists as well as lesbian, gay, and bisexual people.

We support many of the positive provisions put forth by the Equality Act. Federal statutory protections for lesbians, gay men, and bisexuals based on sexual orientation are long overdue.

However, the Equality Act’s attempt to protect transgender-identified individuals from discrimination—by redefining sex to “include sexual orientation and gender identity,” and by replacing “sex” in civil rights laws with “sex (including sexual orientation and gender identity),” creates ambiguity, confusion, and introduces a conflict between the sex-based rights of women, long acknowledged in the law, and claims recently being raised based on gender identity as a rationale for overriding separate provisions.

The Equality Act as written then enshrines as law this premise that self-declaration of one’s gender identity takes primacy over biological sex.

Clearly, sex is not “sexual orientation” or “gender identity.”

Merging two distinct groups—who possess different sets of experiences and needs, as well as unique histories of discrimination and marginalization—is detrimental to preserving human rights protections currently afforded to females as a uniquely subjugated class.

More importantly, “gender” or “gender identity” is conflated with “sex” throughout the bill without clearly defining either term. The term “gender identity” is subjective in that it describes a state of mind that may or may not be manifested in dress, grooming, or behavior, and is generally based upon discriminatory sex stereotypes that feminists have been working to abolish for decades. This subjectivity opens a loophole ripe for abuse and provides no objective test useful to a court, which will ultimately litigate the conflicts sure to arise from this legislation.

As written, the Equality Act erases sex as a protected class in law, weakening protections as well as undermining the existing rights of females as a unique class and will erase the progress women have made toward achieving equality with men.

By eliminating sex as a protected class, the bill as currently written would:

• Undermine targeted remedies for the exclusion or underrepresentation of women and girls in education as well as in jobs and professions traditionally held by men
• Eradicate competitive women’s sports by undermining Title IX protections
• Make it impossible to track (and remedy) disparity between the sexes, such as the pay gap and domestic violence, which is overwhelmingly male violence against women
• Prevent the gathering of accurate crime, health, and medical research statistics

It is not necessary to erase or redact sex in the law in order to protect the rights of lesbian, gay, bisexual, and gender non-conforming people, whether trans-identified or not; in fact, to erase or obfuscate the definition of sex renders it impossible to address sex discrimination or to protect sexual orientation.

These conflicts must be addressed. Failure to do so will threaten long-settled statutory and case law developed to protect the rights of females as a distinctive class.

Our amendments provide a solution.

Like the Equality Act, the Feminist Amendments expand civil rights laws to cover lesbians, gay men, bisexuals, transgender-identified people, and other individuals who don’t conform to gender stereotypes (social roles traditionally imposed based on one’s sex), while continuing to uphold sex-based protections. In doing so, everyone’s concerns and rights to privacy are protected.

The Feminist Amendments eliminate “gender identity” and instead establish two new categories in civil rights law: “sexual orientation” and “sex-stereotyping.” Doing so more effectively protects all classes, including transgender-identified people, without negating sex-based protections.

These amendments contain clear definitions of “sex” and “sex-stereotyping” that will preserve female facilities and programs, allowing women and girls to participate fully in public life.

At the same time, the Feminist Amendments protect lesbians, gay men, bisexuals, and all people who don’t conform to imposed gender roles and stereotypes—including transgender-identified people—from discrimination in employment, education, housing, credit, jury service and in places of public accommodation.

These amendments also allow for the establishment of “gender-neutral” (mixed-sex) facilities for individuals who may feel safer or more comfortable in such spaces, so long as the availability and access to female-only facilities is not diminished. Thus, these amendments allow each protected class to continue to make progress toward achieving true equality.

Female-only facilities, groups, and spaces are an important legacy of women’s organizing, key to the protection of the female sex against male-pattern violence and to the broader participation of women in public life. It is vital that these basic human rights provisions remain in place.

Male-pattern violence against females is so well-documented that Congress passed the Violence Against Women Act in an attempt to protect women and girls from sexual and physical assault. However, such predatory violence remains pervasive as demonstrated by the “Me Too” movement and numerous well-documented instances of such violations by males in the entertainment business, the military, and even Congress. A Swedish study showed that this pattern of behavior is not mitigated by male-to-female sex reassignment surgery.

Moreover, the current bill’s “gender identity” provisions require that males who identify as women, including those with intact male genitalia (85-90% of males who identify as women retain male genitalia), must be admitted, solely on the basis of “self-identification,” into female facilities such as rape crisis centers, battered women’s shelters, homeless shelters, prisons, hospital rooms, communal showers, changing rooms, restrooms, and nursing homes.

Social scientists and international policy bodies have underscored the importance of maintaining separate statistics based on sex as a key means of tracking disparities between the sexes, recording accurate data, and measuring our progress on addressing sex-based discrimination. In addition, there are multiple instances, such as within the context of healthcare and medical research, where maintaining accurate information about a person’s sex is vital, even life-saving.

One hundred years after women’s suffrage, women are still paid less, are denied equal opportunities in the workplace, and continue to be underrepresented in many fields and positions of economic and political leadership in our society because of their sex. Females still suffer disproportionately from domestic violence and rape because of their sex.

The world is watching. Will the United States remain a leader for women’s rights and the rights of the LGB community, or will Congress replace biology and science by redefining sex to include fictions created on the fly by anyone, at any time, for any reason?

I respectfully submit the above to the Judiciary Committee and request that this document and the Feminist Amendments be included in the record for consideration by the Committee.

M. Lynette Hartsell, LGB Alliance USA
Co-Chair of Coalition for Feminist Amendments
Cedar Grove, North Carolina